Inaugural Commentary

The Missouri Case Against China Is Ill-founded and Will Undermine Building a 

Community of Shared Future for Mankind

Tom Zwart

Professor of Cross-cultural Law, Utrecht University;

Director of the Cross-cultural Human Rights Centre, Free University of Amsterdam

The Netherlands

2020.06.24

1. Introduction

1. The way China has handled the outbreak of the COVID-19 virus is increasingly being criticised in the United States. Several court cases have been initiated against China. Thus, on April 21, Missouri Attorney General Eric Schmitt initiated proceedings in the federal District Court against the People’s Republic of China and some of its entities, such as the National Health Commission, the Chinese Academy of Sciences, and the local governments of Hubei and Wuhan (https://htv-prod-media.s3.amazonaws.com/files/prc-complaint-1587488259.pdf). Missouri is one of the fifty states that are part of the U.S. federal system. A similar case has been filed by the state of Mississippi.

2. With the help of a 47-page complaint, Attorney General Schmitt is seeking recovery for the loss of life, human suffering and economic turmoil resulting from the COVID-19 virus as experienced by Missourians. According to Attorney General Schmitt, the Coronavirus pandemic was due to a failure to act by the Chinese authorities.

3. In section 2 of this comment, I will briefly analyse the case, including its prospects of success. In section 3, I will discuss the motives which may be behind the decision of Attorney General Schmitt to bring this case. Section 4 will contain some concluding observations.  

2. Characteristics of the Missouri case

2.1 Introduction

4. A case like this faces many barriers, such as the need to show standing, China’s sovereign immunity, potential non-justiciability because of the foreign policy dimension, and the possible applicability of the defence of force majeure. These potential stumbling blocks will be discussed in the following sub-sections (for a more detailed discussion of the legal issues involved see Alexander Knoops and Tom Zwart, Does the COVID-19 lawsuit brought by Missouri against China have any prospect of success? http://translaw.whu.edu.cn/en/index.php/index-view-aid-735.html).

2.2 Standing

5. Under U.S. federal law, a claimant needs to have standing, i.e. an interest to sue (see Justice Scalia for the Supreme Court in Lujan v Defenders of Wildlife, 504 U.S. 555 (1992)). To do so the plaintiff needs to show that she or he has in fact suffered an injury; that there is a causal connection between the injury and the conduct complained of; and that it is likely that the injury will be redressed by a favourable decision by the court.

6. In the case at hand, Missouri has much difficulty in meeting the second requirement. The state claims injury in fact consisting the costs in terms of health, life, the economy and the toll on human relationships, but it has failed to demonstrate that there is a causal relationship between the alleged injury and the conduct complained of.

2.3 Immunity

7. Foreign states, including China, enjoy sovereign immunity before U.S. Courts under the US Foreign Sovereign Immunities Act and public international law. Attorney General Schmitt has tried to circumvent this bar in three ways.

8. First, he has listed the Communist Party of China as a defendant, while claiming that “the Communist Party is not an organ or political subdivision of the PRC, nor is it owned by the PRC or a political subdivision of the PRC, and thus it is not protected by sovereign immunity”.

9. This position is contrary to international law, according to which state immunity extends to all organs, components, and entities of the state, which, of course, also includes the Communist Party. Furthermore, the General Secretary of the Communist Party also serves as the head of state, who by definition enjoys the protection of state immunity. The actions challenged in the Missouri complaint are all attributable, either directly or indirectly, to the President of China.

10. Second, Attorney General Schmitt has claimed that China does not enjoy immunity because the conduct which allegedly caused the pandemic was commercial in nature. Such commercial activities are excepted from immunity under § 1605(a)(2) of the Act. However, Attorney-General Schmitt failed to identify which specific activities performed by which entity or entities should be characterised as “commercial activities” within the meaning of this provision. Instead, he limited himself to making sweeping and generalised statements and therefore he does not meet the legal requirements of § 1605(a)(2) (Hoban v Sovereign Republic of Peru, 204  F. Supp. 3d 1368 (S.D. Fla. 2016); Harris v Vao Intourist, Moscow, 481  F Supp 1056 (1979, ED NY)).

11. Moreover, since all activities complained of took place within China, they are covered by the Act of State doctrine, according to which states enjoy immunity for acts performed within their territory. The importance of this doctrine was recognized by the U.S. Supreme Court in Underhill v. Hernandez, where Chief Justice Fuller stated for a unanimous Court that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory” (168 U.S. 250 (1897)). Therefore, the Act of State doctrine provides China with immunity for all “commercial” acts referred to by Missouri.

12. Third, Missouri has invoked the tortious conduct exception laid down in § 1605(a)(5) by claiming that the activities which allegedly caused the pandemic amounted to torts occurring in the U.S. It has not identified any damage or loss of property which resulted from the acts that were listed in the complaint, let alone demonstrated that those occurred in the United States, to which § 1605(a)(5) is limited, according to the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp (488 U.S. 428 (1989).

2.4 The political question doctrine

13. In its judgment in Baker v Carr, the Supreme Court acknowledged that some issues should not be decided by judges, because they belong to the core responsibilities of the other two branches of government, i.e. the legislature and the executive (369 U.S. 186 (1962)). Such political questions are non-justiciable. In his opinion for the Court, Justice Brennan indicated that foreign affairs issues tend to be covered by the political question doctrine for three reasons: frequently they turn on standards that defy judicial application; they may involve the exercise of a discretion demonstrably committed to the executive or legislature; or they uniquely demand a single-voice statement of the government’s views. For these reasons it is highly likely that the Court will dismiss the Missouri complaint as being non-justiciable.

2.5 Force majeure

14. Finally, China may invoke one of the defences, such as force majeure, necessity or distress, which would absolve it from state responsibility. The most prominent defence in this regard would be that of force majeure. This defence has been formulated in Article 23 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts as follows:

“the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.”

15. Invoking such a defence is likely to be successful, because many patients suffering from COVID-19 are asymptomatic: although they carry the virus, and they may transfer it through contact with other people, they lack visible symptoms. This makes it extremely difficult to identify and to isolate COVID-19 sufferers and to control the outbreak. In addition, the remedies which are usually deployed to combat respiratory viruses, and which were therefore used in this case as well, tend to be ineffective (Monica Gandhi, Deborah S. Yokoe and Diane v. Havlir, Asymptomatic Transmission, the Achilles’ Heel of Current Strategies to Control Covid-19, 382; New England Journal of Medicine (22 May 2020), 2158-2160, https://www.nejm.org/doi/full/10.1056/NEJMe2009758).

2.6 Conclusion

16. As these observations show, the case brought by Attorney General Schmitt faces severe challenges in several respects. The political question doctrine, the immunity accorded to foreign states, and the defence of force majeure in particular will act as insurmountable barriers. This raises the question why the case was brought in the first place.

3. Possible motives for bringing the case

3.1 Introduction

17. In this section, four possible motives behind the decision to bring the case will be discussed, i.e. lawfare, the upcoming elections in the U.S., activist federalism and engaging in a civilizing mission.

3.2 Lawfare

18. Increasingly states rely on law to pursue their political aims. The case brought by the Philippines against China regarding the South China Sea was a good example of this. Since the Philippines felt that it was in weak negotiating position vis-à-vis China, it decided to take the legal route, because it expected to gain more from doing so (Richard Javad Heydarian, Mare Liberum: Aquino, Duterte, and The Philippines’ Evolving Lawfare Strategy in the South China Sea, 10(2) Asian Politics & Policy (2018), 283-299, 292-293).

19. This approach is usually referred to as “lawfare” (Orde F. Kittrie, Lawfare, Law as a Weapon of War, New York, 2016). Law is then seen as a non-violent means relied upon to help determine the outcome of a war. The word “lawfare” is something of misnomer, however, since law is not always used in this way for war purposes. The South China Sea case is a good example of that. Although there were some tensions between the Philippines and China regarding this issues, they were far from being engaged in a war.

20. Therefore, it is more apt to describe these actions as the strategic use of law as an instrument for political purposes. The case against China brought by Missouri is a clear example of such strategic behaviour.

3.3 The upcoming elections

21. Elections are due in the U.S. on November 3 this year. Americans will not only choose a President, but also tens of thousands of other office holders such as Governors, members of Congress, Attorneys General, mayors and senators. These elections are being dominated by the two main political parties, the Republicans, of which President Trump is the leader, and the Democrats.

22. In order to win these elections, the Republicans have decided to turn bashing China into their main election issue. Republican candidates are encouraged to criticise China during their events, especially China’s alleged negligence during the outbreak of the COVID-19 virus (see GOP Memo Urges Anti-China Assault Over Coronavirus https://www.politico.com/news/2020/04/24/gop-memo-anti-china-coronavirus-207244). There is no actual proof for such negligence, but the truth does not matter during election campaigns. By blaming China, the Republicans try to divert attention away from the manner in which the Trump administration has dealt with the virus in the U.S., which, according to President Trump’s critics, was inadequate. In addition, a large majority of Americans appear to harbour negative feelings towards China, and by blaming China for the current problems the Republicans play into this sentiment. 

23. Attorney General Schmitt is also running for office in November. As a Republican candidate, he is expected to rely on an anti-China platform. Since bringing cases is the core business of Attorney Generals, he decided to do so by initiating a suit against China.

3.4 Activist federalism

24. During the past few decades, state Attorneys General have actively tried to impact national politics through bringing lawsuits. As the chief legal officers of the respective states, the Attorneys General are responsible for enforcing state law and defending the state against legal challenges (Margaret H. Lemos & Ernst A. Young, State Public-Law Litigation in an Age of Polarization, 97 Texas Law Review (2018), 43-123, 65). Traditionally, they have initiated court proceedings against the federal government to resist its usurpation of the responsibilities of the states as laid out in the constitutional arrangements. In addition to these “vertical” law suits, since the 1990s Attorneys General have increasingly become engaged in “horizontal” proceedings in which they have tried to impact the national policy of the federal government.

25. Thus, in 2004, in Massachusetts v. EPA, the Attorneys General of a number of states successfully challenged the refusal of the federal Environmental Protection Agency to regulate carbon dioxide and other greenhouse gasses as pollutants (549 US 497 (2007). In 2010, several state Attorneys-General challenged the constitutionality of the Patient Protection and Affordable Care Act, also know as Obamacare, before the Supreme Court. In its judgment in National Federation of Independent Business v. Sebelius, the Court upheld most of the provisions of the Act as being constitutional (567 US 519 (2012)). In 2014, in United States v. Texas, a large number of Attorneys General challenged administrative actions taken by the Obama administration making the deportation of undocumented aliens without criminal histories the lowest priority for removal and giving a more secure status to undocumented immigrants who are the parents of U.S. citizens. The United States Court of Appeal for the Fifth Circuit decided that the orders issued by President Obama violated the rulemaking requirements of the Administrative Procedure Act (809 F.3d 134 (5th Cir. 2015). This decision was affirmed by the Supreme Court in 2016 (579 US __, 136 S.Ct. 2271 (2016). In Texas v. US, a number of states have again challenged the Patient Protection and Affordable Care Act. The case will be decided later this term by the Supreme Court.

26. As these cases show, the states’ Attorneys General, by bringing these cases, have become important players at the national level (Paul Nolette, Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America, Lawrence, 2015). They are operating within a highly polarized political climate (Margaret H. Lemos & Ernst A. Young, State Public-Law Litigation in an Age of Polarization, 97 Texas Law Review (2018), 43-123, 50-64). As a result, Attorneys General of the same political persuasion tend to join forces, which has let to groups of “red” (Republican) and “blue” (Democrat) Attorneys-General teaming up, sometimes on opposite sites in the same case.

27. Therefore, the case bought by Missouri should be regarded an extension of the tendency of Attorneys General to engage in national politics. Attorney General Schmitt has taken this activist federalism one step further by extending it to U.S. foreign policy.   

3.5 Performing a civilizing mission  

28. There may still be another reason why Attorney General Schmitt has decided to rely on American law to criticise China. In doing so he signals that U.S. law should be used to correct alleged deficiencies in China. The U.S. and its allies have relied on such an approach before during the century of humiliation. Then they forced China to conclude unequal treaties to establish enclaves on Chinese territory in which Northern law would apply extraterritorially (Stefan Kroll, Public-Private Colonialism: Extraterritoriality in the Shanghai International Settlement, in: Inge van Hulle and Randall Lesaffer, International Law in the Long Nineteenth Century (1776-1974), From the Public Law of Europe to Global International Law?, Leiden, 2019, 140-155). To justify the establishment of such zones, the U.S. and its allies argued that the Chinese legal system was inferior and even “barbaric” (Li Chen, Chinese Law in Imperial Eyes, Sovereignty, Justice & Transcultural Politics, New York, 2016). By setting up these zones they were actually performing a “civilizing mission” which in their view would benefit China and its citizens.

29. This idea of a “civilizing mission” became part of international law (Emmanuelle Jouannet, Universalism and Imperialism: The True-False Paradox of International Law?, 18(3) European Journal of International Law (2007), 379-407). It was used to justify colonisation as a beneficial means to save the “backward and undeveloped people of the non-European world” into the universal civilisation of Europe (Anthony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge, 2004). Although the concept has since lost a lot of ground, it has not disappeared from international law completely. Thus, the notion of universalism is often used in international human rights law to force Southern states to abandon their own values and to replace them with Northern ones (Tom Zwart, Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach, 34 Human Rights Quarterly (2012), 546-569). The case brought by Attorney General Schmitt is reminiscent of this “civilising mission” in international law, which is counterproductive.

30. At several occasions President Xi Jinping has emphasised the need of building a community of common destiny to undo the lack of representativeness and inclusiveness of the global governance system. President Xi launched this concept at the international level in his speech to the World Economic Forum in Davos in 2017 (https://america.cgtn.com/2017/01/17/full-text-of-xi-jinping-keynote-at-the-world-economic-forum). Consequently, the relationship between states within the international human rights system should become a partnership based on respect and equality rather than a hierarchy within which so-called good performers are rated higher than bad performers. There should be a fair representation of different views, rather than the promotion of one singular view. Countries will no longer be allowed to use human rights as a Trojan horse to mask their civilizing mission. The Missouri case clearly goes against this aspiration.

4. Concluding observations

31. The case brought against China by Missouri Attorney General Eric Schmitt is likely to fail for lack of standing, the immunity China enjoys before American courts, the non-justiciablity of foreign affairs, and the applicability of the defence of force majeure. However, winning in court was not the aim of initiating this law suit. Bashing China because of COVID-19 has become the main issue in the campaign of the Republican Party for the upcoming elections in November. Therefore, bringing this case is an example of using law for strategic purposes.

           32. Since the case reinforces the idea that the legal systems of Southern countries are inferior to those of the North and that therefore they need “saving” as part of a “civilizing mission”, each and every international lawyer should be concerned about this development. Increasing the Euro-American-centricity of international law goes directly against President Xi’s call to build a community of shared future for mankind, which will be more representative and more inclusive. Therefore, the Missouri case deserves to be critiqued from all quarters. 

33. Until now, the case has been mainly met with silence from the Chinese side (however, see Qinxuan Peng & Tom Zwart, Corona Lawfare by the US against China: A Useful Remedy or an Unhelpful Distraction? available at: http://translaw.whu.edu.cn/en/index.php/index-view-aid-733.html). The present comment shows that it will not be too difficult to build an opposing case. This case can be presented, for example, by filing an amicus curiae brief with the United States District Court for the Eastern District of Missouri, where the case was filed, or by submitting contributions to forums in the United States.

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Notes about the author:

Tom Zwart focuses on the interplay between law and culture, which includes religion. His research includes the following questions: Which value does the local culture accord to formal state law? Which other legal systems are recognised by local culture? Does local culture act as a building block or a stumbling block for compliance with formal state law? Which - invisible - cultural assumptions underlie formal state law? Which role is assigned to culture in the area of comparative law? Zwart focuses in particular on human rights, especially concepts and ideas developed in the Global South, and the mutual acculturation of minorities, especially Muslims, and the societies of which they are part. In the field of human rights Zwart developed the so-called receptor approach to human rights, which regards culture and religion as building blocks rather than stumbling blocks for human rights protection and promotion. His research in this area was awarded with a 1 million Euro grant by the Dutch Foreign Office.  For further details: https://www.uu.nl/staff/TZwart/Profile